0320.00, Duty to Report Potential Exculpatory or Impeachment Material

0320.00, Duty to Report Potential Exculpatory or Impeachment Material

Refer:
•    Brady v. Maryland, 173 U.S. 83 (1963)
•    Giglio v. United States, 405 U.S. 150 (1972)
•    ORS 135.815, Disclosure to defendant
•    ORS 181A.830, Disclosure of information about certain public safety employees 
•    ORS 192.345, Public records conditionally exempt from disclosure 
•    ORS 192.355, Public records exempt from disclosure 
•    ORS 181A.681, Report of misconduct or violation of minimum standards
•    HRAR 2.02, Prohibition Against Workplace Harassment, Discrimination, and Retaliation
•    DIR 0300.00, Statement of Ethical Conduct
•    DIR 0310.00, Professional Conduct and Courtesy
•    DIR 0310.50, Truthfulness
•    DIR 0310.20, Discrimination, Harassment, and Retaliation Prohibited
•    DIR 0330.00, Internal Affairs, Complaint Intake, and Processing
•    DIR 0331.00, Supervisory Investigations
•    DIR 0332.00, Administrative Investigations
•    DIR 0333.00, Criminal Investigations of Police Bureau Employees and Other Law Enforcement Agency Sworn Employees
•    DIR 0335.00, Corrective Action Process
•    DIR 0344.05, Bias-Based Policing/Profiling Prohibited
•    DIR 0660.10, Property and Evidence Procedures 
•    DIR 0900.00, General Reporting Guidelines
•    DIR 1010.00, Use of Force 
•    PSD SOP #14, Case File Confidentiality and Access Control.
•    Multnomah County District Attorney's Office Policy 3.071: Government Witness Impeachment Index
    
Definitions:
•    Duty to Report: The affirmative constitutional duty of law enforcement to notify the Prosecutor of Potential Brady Material.

•    Potential Brady Material: For this Directive, both potential exculpatory and impeachment material are encompassed in the term "Potential Brady Material," which includes:

               o    Any information or material that tends to: 
                    (1) favor the defendant; 
                    (2) exculpate the defendant; 
                    (3) negate or mitigate the defendant's guilt or punishment; or to 
                    (4) impeach the credibility of any government witness, including but not limited to,                                police officers. 

                o    Examples of Potential Brady Material include, but are not limited to:
                      •   Criminal convictions or criminal charges against any government witness.
                      •   Failure of any proposed witness to make a positive identification of a defendant.
                      •   Any inconsistent statement made orally or in writing by any proposed witness.
                      •   Information regarding mental or physical impairment of any government witness                             that would cast doubt on their ability to testify accurately and truthfully.
                      •   Evidence that a proposed witness has a racial, religious, or personal bias                                       against a defendant individually or as a member of a group. 
                      •   A sustained finding of misconduct regarding a member's untruthfulness, bias, or                             excessive use of force in conjunction with their service as a member.
                      •   Altering, tampering, concealing, or misusing evidence in any investigation.

•    Prosecutor: For this Directive, the applicable prosecutorial entity that is entitled to receive Potential Brady Material.

Policy:
1.    This directive establishes procedures for the Portland Police Bureau to timely report Potential Brady Material to the Prosecutor to comply with the requirements of Brady v. Maryland, 173 U.S. 83 (1963), Giglio v. U.S., 405 U.S. 150 (1972), and subsequent cases. These procedures aim to ensure that prosecutors receive sufficient information to meet their disclosure obligations relating to the credibility of government witnesses in furtherance of fair trials.

2.    Brady and subsequent cases require the Prosecutor to disclose to the defendant any evidence that is both favorable to the defendant and material to the defendant's guilt and/or punishment, including evidence that impeaches the credibility of a government witness.

3.    Materiality is a legal issue to be decided in court, and courts decide whether something is Brady Material retrospectively.  Therefore, the Bureau shall err on the side of disclosure as outlined in this Directive and allow Prosecutors to make decisions about materiality.  

4.    The Bureau recognizes that it is the Prosecutor's responsibility to determine whether to disclose material provided by the Bureau to the criminal defendant. 

5.    Both general criminal investigations, and internal investigations regarding member misconduct (as found in criminal and administrative investigations), can yield Potential Brady Material.

Procedure:
1.    Duty to Identify and Report Potential Brady Material.
1.1.    The Bureau and its members have a Duty to Report Potential Brady Material to the Prosecutor. That obligation extends from the time of arrest through trial and sentencing.

1.2.    The Bureau and its members shall exercise due diligence to identify and report Potential Brady Material in the Bureau's possession to the Prosecutor as soon as practicable.

1.3.    Allegations that cannot be substantiated; are not credible; or have resulted in exonerated, not sustained, or unfounded findings are generally not Potential Brady Material.

2.     Member Reporting and Investigating Responsibilities.
2.1.    Potential Brady Material in Criminal Investigations.
2.1.1.    Members shall exercise due diligence to identify and provide Potential Brady Material they possess regarding criminal cases they are working, or have worked, to the Prosecutor as soon as practicable, on an on-going basis.
2.1.2.    Members shall document in their investigative reports all information they reasonably believe is Potential Brady Material (e.g., the failure of any proposed witness to make a positive identification of a defendant).
2.1.3.    Members report Potential Brady Material to the Prosecutor by submitting their reports electronically through the normal reporting process.

2.2.    Potential Brady Material Regarding Member Misconduct. 
2.2.1.    Members should be aware that member misconduct may constitute Potential Brady Material. Therefore:
2.2.1.1.    Members shall report alleged member misconduct in accordance with Directive 0310.00, Professional Conduct and Courtesy, and Directive 0330.00, Internal Affairs, Complaint Intake, and Processing, and as required by state law.
2.2.1.2.    Members shall report alleged member criminal conduct in accordance with Directive 0333.00, Criminal Investigations of Police Bureau Employees and Other Law Enforcement Agency Sworn Employees, and as required by state law.
2.2.1.3.    When a supervising member becomes aware of Potential Brady Material regarding alleged member misconduct, the supervising member shall immediately forward the information directly to Internal Affairs (IA).

3.    Potential Brady Material in Internal Affairs Investigations.
3.1.    Affirmative Notifications to the Multnomah County District Attorney (MCDA).
3.1.1.    The Professional Standards Division (PSD) Commander or designee shall affirmatively notify the MCDA of the following:
3.1.1.1.    Open Investigations: All allegations regarding a member's untruthfulness; bias; evidence mishandling; excessive force; and criminal conduct, upon opening an administrative or criminal investigation or becoming aware of a criminal investigation conducted by another jurisdiction. 
3.1.1.1.1.    Open Investigation means a complaint that is under investigation and was not administratively closed, pursuant to Directive 0330.00, Internal Affairs, Complaint Intake, and Processing. 
3.1.1.2.    Investigation Outcomes: The final outcomes (i.e., findings) for all investigations listed in Section 3.1.1.1. For those cases resulting in sustained findings, the notification will include the imposed discipline letter. 
3.1.2.    If the PSD Commander believes a file may contain potential Brady material regarding an investigation not covered by Section 3.1.1., the PSD Commander shall consult with the City Attorney's Office to determine whether to affirmatively notify the Prosecutor.
3.1.3.    These affirmative notifications aim to inform the MCDA of the possible existence of Potential Brady Material. It is the Prosecutor's responsibility to evaluate Potential Brady Material and determine whether the information is material to a specific case.

3.2.    Other Prosecutor Requests for Potential Brady Material.
3.2.1.    Consistent with the scope of disclosure under Section 3.1., the Bureau shall notify Prosecutors from other jurisdictions of Potential Brady Material to upon request.

3.3.    Confidentiality and Content of Notifications.
3.3.1.    All notifications shall be provided via a confidential submission per ORS 192.355(4) and may contain the following: case number; complainant name; incident date; reported date; status; status date; allegation type; allegation summary statement; applicable directive; and, upon closure of the investigation, findings and imposed discipline letter.

3.4.    In Camera Review.
3.4.1.    Prosecutors may request records from administrative investigative files by filing a motion for in camera review by the Court.  
3.4.2.    If the Court determines that there is relevant Brady material contained in the files, the Bureau will request a protective order and copy and release to the parties filing the motion only that material ordered released by the court.

4.    Rights and Responsibilities. 
4.1.    Prosecutorial Responsibilities.  
4.1.1.    It is the Prosecutor's decision how to evaluate Potential Brady Material and their responsibility to determine any disclosure obligations. 
4.1.2.    This decision includes whether to include members on any list or in any database, such as the MCDA's Potential Impeachment Disclosure Index (PID Index). 
4.1.3.    The PID Index is the database used by the MCDA to track impeachment evidence regarding state witnesses (sometimes informally referred to as a "Brady list"). 
4.1.4.    The Prosecutor is responsible for managing its own list or database related to impeachment evidence, including any procedures for including members and for appeals.

4.2.    Professional Standards Division and Detective Division Responsibilities and Member Notification.
4.2.1.    PSD is responsible for monitoring all criminal and administrative investigations of members. 
4.2.2.    The PSD Commander or designee is responsible for the Bureau notifying the MCDA of Potential Brady Material in IA Investigation files, Independent Police Review (IPR) investigation files once provided to IA, and criminal investigation files of members. 
4.2.3.    The Detective Division Commander or designee is responsible for identifying Potential Brady Material in criminal investigation files of members and reporting to the PSD Commander. 
4.2.4.    The PSD Commander or designee shall notify members in writing when the Bureau notifies the Prosecutor regarding the member's internal investigation file(s), unless doing so would jeopardize an ongoing investigation of the member.
4.2.5.    The PSD Commander or designee shall request a copy of MCDA's PID Index quarterly and shall attempt to remain informed of Bureau members listed therein.

4.3.    Bureau Member Privacy and Rights.
4.3.1.    This Directive does not change the confidential nature of member personnel files.
4.3.2.    This Directive does not change the requirements of public records law exemptions imposed on the City, the Bureau, and the Prosecutor regarding member personnel files. 
4.3.3.    A member's inclusion on the PID Index or any "Brady list" is not independent grounds for member discipline or termination. 
4.3.4.    The PSD Commander or designee shall provide members with information regarding the MCDA review process and the member's rights upon request.

4.4.    Constitutional Rights.
4.4.1.    This Directive does not change, restrict, or expand a defendant's rights under Brady and subsequent cases or the United States Constitution.

Effective:          03/12/2026

Next Review:    03/12/2028